Peculiar attribution question

In casting about the Internet for information, I found this forum, and I hope this is someplace where I can get some help.

On my page at http://barelybad.com/fpdogs.htm you'll find all the facts
you need to help me answer some questions. (Ignore the cats at the
bottom.)

Till June 9th the page stated that this was a Far Side cartoon, and on
June 10th I merely added the "Correction notice" link and the new page
it opens.

(1) Assuming that this is not a Far Side cartoon and assuming that the
correction notice isn't there, is it a violation of copyright or any
other U.S. law to state publicly that the work of one person or entity
is the work of another if that is not true?

Does it make a difference if a reproduction of the entire work -- in
this case a cartoon -- appears alongside the false attribution?

(2) The June 10th mail from Creators Syndicate says, "...we have to be
concerned about any unauthorized use of The Far Side name and cartoons, especially when they appear online."

What is "unauthorized use of the Far Side name"?

I can see how I probably shouldn't state on a Web page something like,
"Gary Larson and Far Side endorse my product, so you should buy it,"
but what if I say, "The Far Side cartoons are especially funny, and here's why: . . . ."?

(3) Is it violative if I state publicly that Person A created a
particular work and then state somewhere later that Person A did not
create the work?

I believe that I am an expert on copyright law. However, I'm not a lawyer nor am I one of the ALA-trained experts. Also, I'm not an expert on other areas of the law, such as libel.
First, the answer to a question you didn't ask. You may or may not be able to show this cartoon on your web site. You can get permission, but you do not need permission if the use is considered a fair use according to the law on fair use. If your use is fair according to the law, it doesn't matter what the copyright holder thinks. For the purposes of this discussion, I am assuming that your use if fair according to the law, regardless of who the copyright holder actually is.
[quote](1) Assuming that this is not a Far Side cartoon and assuming that the correction notice isn't there, is it a violation of copyright or any other U.S. law to state publicly that the work of one person or entity
is the work of another if that is not true?[/quote]
False attribution certainly isn't a violation of copyright law. Whether it violates other laws, I can't say. If you put child pornography on your web site and attribute it to me, I will find a way to sue you. In such a situation, you must be guilty of libel or defamation of character or something similar.

Does it make a difference if a reproduction of the entire work -- in this case a cartoon -- appears alongside the false attribution?

Absolutely not.
[quote](2) The June 10th mail from Creators Syndicate says, "...we have to be
concerned about any unauthorized use of The Far Side name and cartoons, especially when they appear online."
What is "unauthorized use of the Far Side name"?[/quote]
Literally, you used the name without their permission. That doesn't mean that the law requires you to get their permission. The use is unauthorized by them but may in fact be authorized by the law.
As far as the law goes, he's talking about trademark law not copyright law.
Think about Xerox or Thermos. These are trademarked, not copyrighted, brand names. Although I haven't checked, I'm sure that Larson has a trademark on The Far Side name.
I don't know about you but I never say "vacuum bottle"; I always say "Thermos" regardless of who actually made the thermos. That's bad news for Thermos. They can trademark a brand name but not a generic name. If people start calling every vacuum bottle a Thermos, then thermos becomes a generic name which cannot be trademarked. In order to prevent this from happening, Thermos has to aggressively combat any generic use it encounters. Same with Xerox (the verb) and photocopy or Xerox machine and photocopier.
To maintain the trademark on a cartoon called The Far Side, Larson needs to prevent the term from becoming a generic term to describe weird one-panel cartoons. Personally, I see no way for this to happen, but Larson must act now to prevent it from happening or he has no defense if it actually does happen.

I can see how I probably shouldn't state on a Web page something like, "Gary Larson and Far Side endorse my product, so you should buy it," but what if I say, "The Far Side cartoons are especially funny, and here's why: . . . ."?

Ignoring the fact that he doesn't want you to post his cartoons, he doesn't have a problem with your second statement. It's the attribution of a brand name to something that isn't part of that brand which causes the problem
[quote](3) Is it violative if I state publicly that Person A created a particular work and then state somewhere later that Person A did not
create the work?[/quote]
Does it violate copyright law? Certainly not.
Does it violate other laws? Hard to say.
Let's say a newspaper made a mistake and didn't catch it until the readers wrote letters. The newspaper can't go back in time, so its only option is to print a correction notice. In most cases, this is legal. But if the mistake is the front page headline that says "Pope publishes pornography", then we're talking about libel again.
My gut feeling is that you aren't breaking any laws. However, your web site isn't a newspaper. You can remove the words "Far Side" from your web site. Doing so strikes me as significantly less work than posting the correction notice. So although the newspaper can say, "Oops, we made a mistake but we fixed it," I don't think you can. That doesn't mean you've violated any laws but it raises the possibility that your motives aren't pure even if they really are.
If I were in your position, I would remove the correction notice and the words "Far Side." However, I would do that because I think it is the best solution not because I think that the false attribution is against the law.
I have not dealt with the legality of showing this cartoon regardless of attribution because you didn't ask, Larson and his lawyers don't care, and I think your use is fair according to the law. However, it's not that simple. You should not confuse anything I've said as a definitive statement on the legality of showing the cartoon. If you want me to deal with that, just ask.

June 17, 2005 @ 1:21pmCOvalle says:

Not a lawyer either, but on a related note- the right of attribution is generally part of the "moral rights" that an author may have in their work. In the US, this right is not explicitly codified in copyright except in limited ways (the VARA act). However, laws of defamation or laws regarding publicizing may cover this type of attribution. Trademark law also does have portions that do cover attribution, but that generally covers actual "trade" and not noncommercial use. That section of law is:
§43 (15 U.S.C. §1125). False designations of origin; false description or representation

June 18, 2005 @ 8:20amJohnnyG says:

June 18, 2005

cjovalle, thanks for the information, and I'll check it out. It might be useful.

Alfred, thanks for the thorough and well-thought-out (and well-expressed) response to my questions. It is a pleasure reading it.

I'd like to take you up the offer in your last paragraph.

Also, and this might be well beyond your ken, do you know of any reason that page violates any aspect of the Digital Millennium Copyright Act, which is what my Web host server alleges? Keep in mind -- as my Web host server seems to have missed entirely -- that Creators Syndicate claims the cartoon is NOT a Far Side.

A final thought: At this point I'm thinking pf switching this page from a simple presentation of two funny and somewhat similar cartoons to a discussion of the very fact Creators Syndicate wrote me at all. Do you think this would pull me entirely under the umbrella of fair use?

If you don't care to respond at all to this follow-up, Alfred, I still thank you again for your first response.

--Johnny

June 21, 2005 @ 10:41amCOvalle says:

We can't say with 100% certainty that your use is fair use, but you could certainly take steps to strengthen your fair use argument by providing an educational or similar context related to the posting of materials. Alfred was assuming that your use was fair to begin with. If that assumption is correct, then your use does not violate the DMCA.

If your ISP is responding to the "notice and takedown" provisions of the DMCA, then action should have been initiated by the rightsholder, and not Creators Syndicate.

June 28, 2005 @ 7:44amAFry says:

Sorry, but I've been busy.

cjovalle, thanks for the information, and I'll check it out. It might be useful.

I really wish more people would get involved on this board. cjovalle's post was almost entirely composed of information that was new to me. I'm sure that there are some lurkers out there who have something useful to add to the conversation.

Alfred, thanks for the thorough and well-thought-out (and well-expressed) response to my questions. It is a pleasure reading it.

Thank you very much.

Also, and this might be well beyond your ken, do you know of any reason that page violates any aspect of the Digital Millennium Copyright Act, which is what my Web host server alleges? Keep in mind -- as my Web host server seems to have missed entirely -- that Creators Syndicate claims the cartoon is NOT a Far Side.

cjovalle knows more than I do.

I'd like to take you up the offer in your last paragraph.

OK. First, everything cjovalle said is true.
The only way to be absolutely certain that your use if fair is to be sued by the copyright holder and get a determination from a judge. However, you do not need to be absolutely certain. There is some risk involved, especially when dealing with copyright holders who are aggressively enforcing their rights.
If a judge were making a fair use determination, he or she would be using the four factors. I'll explain those factors and give you my determination, but you need to make your own determination.
1. Character of use.
This factor is traditionally viewed as commercial vs. educational. You seem to be clearly on the non-commercial end. I think this factor works for you.

At this point I'm thinking of switching this page from a simple presentation of two funny and somewhat similar cartoons to a discussion of the very fact Creators Syndicate wrote me at all. Do you think this would pull me entirely under the umbrella of fair use?

As cjovalle said, the more explicity educational, or satirical, your page is the more likely it is that a judge will rule this factor in your favor.
2. Nature of work.
Creative vs. factual. This factor works against you.
3. Amount used.
I think this is tricky. Although you are using an entire cartoon, I'm not sure that an entire cartoon can be considered a complete work within the context of fair use because of the 4th factor. I'll come back to this.
4. "the effect of the use upon the potential market for or value of the copyrighted work" Most experts agree that this is the important factor. Judicial decisions do not really give us a clear indication on how they would rule in a case like this. In my opinion, your use has a negligible effect or no effect at all on the market for or value of the work.
This opinion is at odds with the conventional wisdom of librarians, music companies, and movie studios. However, there are 3 points you should consider:
1. The argument I am about to make has never been tested in a court of law.
2. Copyright holders always interpret the law in their own best interests
3. The conventional wisdom of librarians has been shaped primarily by something called the Copyright Guidelines. These guidelines were created by people who are uncomfortable making decisions using the four factors. The four factors are law. The guidelines are not. I'm not going to go into the details unless you ask.
Here's the argument.
What is the value of a single cartoon after it has been paid for and published by all the newspapers that carry it. In my opinion, the value is extremely small. The value of an average cartoon to an individual is probably measured in pennies. A single cartoon is just a tiny fraction of an entire newspaper, so it seems reasonable to me that the value of a single cartoon to a single individual is, on average, a tiny fraction of the newspaper's price.
King's Features, http://www.kingfeatures.com/index.htm, "the world's premier distributor of comics, columns, editorial cartoons, puzzles and games to newspapers [and] a worldwide leader in merchandising and licensing", gives away an entire month of all of their cartoons. Why would a worldwide licensing leader and the premier distributor of comics give away something that has a significant value? In my opinion, King Features believes that single cartoons used in a non-commercial context have almost no value.
Does Gary Larson disagree? Since he isn't the copyright holder, it doesn't really matter. However, I have been unable to find any attempt by Larson to sell individual cartoons to individual users. The only web site I could find, http://www.thefarside.com/, contains information about buying a video but doesn't contain any other information. If the market for single cartoon sales to individuals is so great, why is he not trying to exploit that market?
That brings me back to factor 3. I believe that single cartoons are a tiny fraction of the whole. A collection is a unit that has significant value. A subscription is a unit that has significant value. A single cartoon is not. So, I believe the 3rd factor works in your favor when considered in conjunction with the 4th factor.
Does your use deprive the copyright holder of book or subscription revenue? I cannot imagine anyone trying to compile a collection by searching the internet for all the cartoons. Even if it were possible to do that, you are potentially liable only for the single cartoon you have posted, not for any of the cartoons that might appear on other web sites.
So, in my opinion, 3 of the 4 factors, including the most important one, work in your favor and your use is fair even if Gary Larson is the copyright holder.
Would the copyright holder agree? Probably not. Almost certainly not if the copyright holder is Gary Larson. If your goal is to follow the law, only a judge's opinion matters. If your goal is to avoid a law suit, then you should be concerned about how the copyright holder will react if your use becomes known to that person. That's why you need to make your own determination and make your own assessment of the risk involved.
In defense of Larson, his letter is primarily an emotional request. I think he has taken it to an extreme, but his feelings about other people's use of his work is not ruled by law. Regardless of his feelings, he does have a very real legal complaint against anyone who has "collected, digitized, and offered up [his work] in cyberspace beyond my control."

July 5, 2005 @ 9:59amJohnnyG says:

July 5, 2005

cjovalle and Alfred,

I'd like to ask your permission to quote you. Will you please write me, if you will consider it, at the e-mail addy you will find at my home page.